APT English Legal Terminology 2008/2009 Academic Year

APT – English Legal Terminology 2008/2009 Academic Year

Professor Robert Turk University of Ljubljana School of Law

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2008/2009-APT-IntroToCrimProcedure

Introduction to Criminal Procedure (Page 1 of 11)

In 'TheOxford Companion to Law', David Walker identifies eight 'essential elements

of criminal procedure':

a)provision for securing the presence of the person accused;

b)provision for acquainting him with what conduct on his part is alleged by the prosecuting agency to be a contravention of the criminal law;

c) an opportunity to the accused to prepare his defence; [British: defence / American: defense]

d)ascertainment of facts bearing on the accused person's guilt of the crime charged, including opportunity to the accused to challenge the facts alleged and to state his defence;

e)decision of any issue of law doubtful or challenged;

f)decision of the accused person's guilt of the crime charged, on the basisof the facts held to

have happened and of the rules of law held relevant;

g) determinationof the appropriate sanction; and

h)provision for appeal on fact, or law, or disposal of the accused.

Other elements of procedure, according to Walker, are ancillary(subsidiary) to one or more of

these main elements. See David M. Walker, The Oxford Companion to Law (Oxford: Clarendon Press, 1980).

What provisions in criminal procedure help secure the 'presence' of the accused? Procedures

involving 'arrest' and 'bail' are two such provisions already familiar to most law students.

What provisions 'acquaint' an accused person with conduct alleged to contravene the criminal

law? Some of these provisions relate to 'bringing charges', as well as the 'initial appearance'.

Professor Walker's list of essential points is provided here for your own reflection, not to be

merely 'memorized' for a Test. Try to familiarize yourself with at least one significant word

from each point on the list to help you remember the broad outline he suggests. Would your

own list of essential points be similar? How might your list be different?

(Note: Parts of the following text were adapted from the publication: 'Law and the Courts: A Handbook of Courtroom Procedures', American Bar Association, (Chicago: 1987), which is now unfortunately out of print.)

Criminal charges can be brought in one of three ways, through:

Charging 'document' / Charging 'institution /
officer' /

Notes / commentary on

terminology

1. an 'indictment'
(pronounced: 'in DITE ment'
The letter 'c' is 'silent' here, like the letters 'gh' in the word 'light'.) / 'voted' by a 'grand jury' / (Compare 'grand jury'
and 'petit jury' / 'petty jury')
2. an 'information'
(Note: this is a common word in
general English usage, but here it
is used as a legal term for a type
of 'document'.) / 'filed' by a 'prosecutor'
(who can also be called…
depending on the
jurisdiction that is
involved…
the prosecuting attorney,
the Attorney General,
the State's Attorney,
the County Attorney,
the District Attorney
= the 'D.A.' …) / … who alleges that a crime has been committed.
Sometimes the charging document ('information') filed by a prosecutor may be basedon charges 'made'
or 'pressed' by another individual (such as a crime 'victim') who has filed a 'criminal complaint' (which is, in essence, a petition to the prosecutor, asking that charges be initiated by the prosecutor).
('The victim decided to press charges.')
3. a 'citation'
(In slang: 'a ticket' ) / 'issued' by a 'police officer'
(In slang: 'to giveorwrite a ticket'
or 'to get a ticket from a
policeman' ) / … for certain 'misdemeanors'
and other minor criminal offenses, including minor traffic offenses…
(In slang: 'A cop gave me a
speeding ticket today.')

The charge must include the time, date, and place that the criminal act allegedly took place,

the alleged involvement of the accused, and the details of the crime itself.

Would it make much difference to you how charges were brought against you by the State?

Does your answer to the question depend on the nature of the charges being brought against

you? Suppose the charge against you was a 'capital felony', such as 'first degree murder', for

which the maximum sentence was the death penalty. The case Hurtado v. California (1884)

dramatically illustrates, in both the majority and dissenting opinions, the balancing of interests

between the State and the individual in such a situation. Hurtado has been discussed and cited

in thousands of cases since it was decided by the U.S. Supreme Court, but the case has never

been overruled. Excerpts of Hurtado majority and dissentingopinions are included, below.

First, however, it is necessary to look more closely at the 'grand jury' and other procedures.

(Page 2 of 11)

The Grand Jury

Grand juries exist in the federal system but are used in only about half the fifty states in the United States. Where the grand jury is used in the states, its function is often limited to investigating public corruption, or such tasks as monitoring conditions in the jail.

The grand jury is a body of citizens, varying in size from state to state, summoned by the court. In the federal system and in the states in which it still serves its traditional function in criminal cases, its role is to determine whether, and against whom, criminal charges should be filed. If a grand jury finds sufficient evidence that a person has committed a crime, it then issues an indictment against that person. In states without grand juries, or states whose grand juries primarily investigate public corruption, charges are brought by the prosecutor, by filing an information against the defendant. [See Hurtado v. California, below.]

Grand jury proceedings are secret. The public, the news media, and the person being investigated have no right to be present. In most jurisdictions, people called to testify before a grand jury are not allowed to be represented by counsel when appearing before a grand jury. The secrecy of the proceedings is intended to encourage witnesses to speak freely without fear of retaliation, and to protect the persons being investigated in the event that the evidence is deemed insufficient and an indictment is not issued against them.

The purpose of the grand jury is not to decide the ''guilt'' or ''innocence'' of a person. It is, instead, to determine whether there is sufficient evidence to bring a person to trial. If people are indicted, they have the opportunity to defend themselves at the ensuing trial.. The judge or jury at trial will determine whether a person is ''guilty'' of the charges.

The grand jury has broad investigative powers. It may compel witness to appear and answer questions or to submit (give / present) records. This is called a grand jury's subpoena power'.

[sub = under, poena = penalty, and so 'under penalty of law, you must appear and answer…']

In addition to investigating possible criminal behavior, when public corruption is alleged, a grand jury may conduct an investigation. Besides issuing indictments alleging that a person has committed a crime, a grand jury also may issue a presentment, a document detailing the results of its investigation.

In many states it is a crime to reveal information about a grand jury's proceedings. However, witnesses called to appear before a federal grand jury are free to describe their testimony after leaving the grand jury room.

Compare:

'Grand' Jury = traditionally composed of 23 members who must determine if there is sufficient evidence to indict the accused person.

'Petit' [or 'Petty' ] Jury = traditionally composed of 12 members (but in some trials, in some states, the number may be as low as 6 members) who must determine issues of fact

at trial, and then reach a verdict regarding the 'guilt' of the accused person.

(Page 3 of 11)

HURTADO v. CALIFORNIA, 110 U.S. 516 (1884)
In error to the Supreme Court of California
Argued: January 22-23, 1884. Decided: March 3, 1884 [in a 7-1 decision of the U.S. SupremeCourt]
1. The words 'due process of law' in the Fourteenth Amendment of the Constitutionof the United States do not necessarily require an indictment by a grand jury in a prosecution by a State for murder.
2. The Constitution of California authorizes prosecutions for felonies by information, after examination and commitment by a magistrate, without indictment by a grand jury, in the discretion of the legislature. The PenalCode of the State makes provision for an examination by a magistrate, in the presence of the accused, who is entitled to the aid of counsel [110 U.S. 516, 517] and the right of cross-examination of witnesses…
Held, that a convictionuponsuch an information for murder in the first degree and a sentence of death thereon are not illegal by virtue of that clause of the Fourteenth Amendment to the Constitution of the United States which prohibits the States from depriving any person of life, liberty or property without dueprocess of law.
The Constitution of the State of California, adopted in 1879, in Article I, Section 8, provides…: Offences heretofore required to be prosecuted by indictment shall be prosecuted by information,… or by indictment, …as may be prescribed by law. A grandjury shall be drawn and summoned at least once a year in each county.
* * * [110 U.S. 516, 517-519]
Mr. Justice Mathews delivered the opinion of the Court. [= 'the majority opinion'] * * *
The question is one of grave and serious import, affecting both private and public rights and interests of great magnitude, and involves a consideration of what additional restrictions upon the legislative policy of the States has been imposed by the Fourteenth Amendment to the Constitution of the United States.
* * *
The Constitution of the United States was ordained, it is true, by descendants of Englishmen, who inherited the traditions of English law and history; but it was made for an undefined[110 U.S. 516, 531] and expanding future, and for a people gathered and to be gathered from many nations and of many tongues. And while we take just pride in the principles and institutions of the common law, we are not to forget that, in lands where other systems of jurisprudence prevail, the ideas and processes of civil justice are also not unknown. 'Due process of law', in spite of the absolutism of continental governments, is not alien to that code which survived the Roman Empire as the foundation of modern civilization in Europe, and which has given us that fundamental maxim of distributive justice suum cuique tribuere. There is nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every age, and as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not less useful forms.
* * *
[I]f in the adoption of [the 14th] amendment it had been part of its purpose to perpetuate the institution of the grand jury in all States, it would have embodied, as did the Fifth Amendment, express declarations to that effect.
* * * For these reasons, finding no error therein, the judgment of the Supreme Court of California is affirmed.
Mr. Justice HARLAN, dissenting. [110 U.S. 516, 538]
The plaintiff in error, Joseph Hurtado, now under sentence of death pronounced in one of the courts of California, brings this writ of error upon the ground that the proceedings against him are in violation of the Constitution of the United States. The crime charged, and of which he was found guilty, is murder. The prosecution against him is not based upon any presentment or indictment of a grand jury, but upon an information filed [110 U.S. 516, 539] by the district attorney of the county in which the crime was alleged to have been committed… As I cannot agree that the State may, consistently with due process of law, require a person to answer for a capital offence except upon the presentment or indictment of a grand jury, and as human life is involved in the judgment rendered here, I do not feel at liberty to withhold a statement of the reasons for my dissent from the opinion of the court. * * *
… [W]hen the Fourteenth Amendment was adopted, all the States of the Union, some in terms, all substanially, declared, in their constitutions, that no person shall be deprived [110 U.S. 516, 557] of life, liberty, or property, otherwise, than 'by the judgment of his peers, or the law of the land,' or 'without due process of law'. … [W]hen the Fourteenth Amendment was submitted and adopted, the Bill of Rights and the constitutions of twenty-seven States expressly forbade criminal prosecutions, by information, for capital cases; …while, in the remaining ten States, they were impliedly forbidden by a general clause declaring that no person should be deprived of life otherwise than by 'the judgment of his peers or the law of the land', or 'without due process of law… It may be safely affirmed that, when that Amendment was adopted, a criminal prosecution, by information, for a crime involving life was not permitted in any of the States composing the Union… My sense of duty constrains me to dissent from this interpretation of the supreme law of the land.

Arrest Procedure

When an indictment is returned by a grand jury or an information is filed by the prosecutor, the court issues a warrant for arrest of the persons charged (if they have not already been arrested) and they are taken into custody. (Sometimes, for less serious offenses that don't involve arraignments, defendants are issued citations rather than being arrested.)

When people are arrested, they must be informed that they have certain rights…

The right to remain silent,

(with the warning that anything they say may be held against them).

The right to consult with a lawyer,

(and that if they cannot afford a lawyer, one will be appointed to represent them).

These are often referred to as the 'Miranda rights' or 'Miranda warnings' because the U.S. Supreme Court ruled in Miranda v. Arizona (1966) that when law enforcement officers question people taken into custody, the evidence garnered (collected) from their interview cannot be used against them unless they have been informed of their constitutional rights to counsel and to remain silent.

Many states permit law enforcement officials to hold suspects for up to 24 hours without filing

a formal charge. Within that time charges must be filed against them or they must be released.

The Miranda citation and some questions are presented below:

MIRANDA v. ARIZONA, 384 U.S. 436 (1966)

Case Questions:

Miranda was charged with what crime(s)? Kidnapping and rape.

On what grounds did Miranda challenge his conviction?

Violation of his 5th Amendment privilege against self-incrimination.

Was the Supreme Court in general agreement, or divided, in its ruling on Miranda's case?

The same 5-4 vote as in Escobedo v. Illinois (1964), with the same Justices dissenting.

(Page 5 of 11)

Initial Appearance

Unless accused persons waive [= to voluntarily 'give-up' or 'surrender' a right known to them] their right to an initial appearance before a judge, one will be scheduled soon after their arrest.

(In many jurisdictions this first hearing is called a 'first appearance' or 'initial appearance'.

In other jurisdictions it is called a 'preliminary hearing' or 'arraignment', but note that these

latter terms are more usually reserved for a later stage of the criminal justice process.)

The 'initial appearance' procedure is used for defendants who were not indicted by a grand jury, and serves some of the functions of the grand jury (as the judge determines at the initial appearance whether there was 'sufficient evidence' to charge them with committing a crime.)

Another purpose of the 'initial appearance' is to ensure that defendants are informed of the charges against them and know their legal rights.

At the 'initial appearance' hearing, the state must demonstrate to a judge that there is sufficientevidence ('probable cause') to believe that the accused persons committed the crime with which they are charged. The accused persons must be present at this hearing, although they generally do not present evidence in their defense.

A judge might conclude that the state does not have sufficient evidence to support the charges and so might order the charges dismissed. If this happens, the accused persons are released.

If the judge believes the evidence is sufficient, in most cases the amount of the defendant's 'bail' will then be set by the judge. Bail is the amount of money that accused persons must 'post' [= to give / present to the court] in order to be released from custody until their trial. The purpose of bail is to ensure that the accused will appear for trial. Bail is not supposed to be used as a form of punishment against the defendant. The bail is returned to defendants when their trial is over; in some states the total amount (minus a processing fee) is returned to defendants.

The type of crime alleged, the 'dangerousness' of the accused, and the safety of the community are also legitimate issues in the setting of bail. Sometimes bail is conditioned on certain behavior of the accused—for example, to have no contact with the alleged victim.

If defendants are unable 'to raise' ('to gather and to give to court') the entire amount of the bail, they may make arrangements for their release through a bail bondsman. In return for the defendant's putting up a percentage of the total bond, usually 10 percent, the bondsman will guarantee the remaining amount to the court should the defendant not be present for trial.

(In many jurisdictions, bondsmen are becoming obsolete because courts themselves are releasing

defendants upon their payment of 10 percent of the bail to the court.)

The judge may release defendants on their own recognizance, on the promise that they will appear for all hearings and for trial. This is usually done if defendants have a steady job, roots in the community, or other personal circumstances indicating that they will not flee.

At the initial appearance, the judge will also determine if the accused persons have legal representation. If they cannot afford to hire a lawyer, the court will appoint a public defender, or in some cases a lawyer in private practice, to represent them at public expense.

(Page 6 of 11)